Families from 4 Paws for Ability, a nonprofit that places service dogs with children with disabilities, brought their service dogs to the Supreme Court on Monday in support of the Fry family.

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Originally published on October 31, 2016 7:08 pm

At the Supreme Court on Monday, the justices heard arguments in the case of a girl with disabilities, her service dog and the school that barred the dog from the premises.

Ehlena Fry was born with cerebral palsy, which significantly limits her mobility but not her cognitive skills. So when she was about to enter kindergarten in Napoleon, Mich., her parents got a trained service dog — a white furry goldendoodle, named Wonder.

Dog and kid traveled to Ohio and trained together for two weeks so that Ehlena could use Wonder to help her, for example, open and close doors, transfer from a chair to a walker, or from a walker to a toilet seat.

But the school district would not allow the dog. It said it was already paying for an aide to help the child, and the dog was unnecessary.

Ehlena's parents maintained the dog was necessary to make her more independent, just as a Seeing Eye dog would be for a blind student. They subsequently moved to another, more welcoming school district, where Wonder helped Ehlena until she graduated to middle school.

Ehlena and her family were on the steps of the Supreme Court Monday, surrounded by dogs, parents, and kids with similar problems. Wonder, who is now pretty much retired as a service dog, was there too, dutifully at Ehlena's side.

"He was a great helper to me and my family," Ehlena said, "and he made me independent."

The legal issue before the Supreme Court tests whether children denied the help of a service dog may sue for damages under the Americans with Disabilities Act, the ADA, without first going through a time consuming and sometimes costly administrative appeal under another law, the Individuals with Disability Education Act, or IDEA.

Representing Ehlena, lawyer Sam Bagenstos seemed to face considerable skepticism at first from both conservative and liberal justices.

Chief Justice John Roberts suggested that if parents want additional leverage in designing the free and appropriate public education plans to which their children are entitled under the IDEA, they can gain additional leverage by suing for damages under the Americans with Disabilities Act. And that, chimed in Justice Stephen Breyer, "would seem to gut the carefully written procedural system that the IDEA sets up."

Lawyer Bagenstos replied that Ehlena's family is suing for emotional distress damages — something not available under the IDEA, so there is no point in going through an administrative appeal under that law.

What emotional damages? In addition to the school's general hostility to the dog, Bagenstos cited the humiliation Ehlena suffered when forced to demonstrate, in front of four adults at the school, just how she used the dog to get on and off the toilet.

Representing the school district, lawyer Neal Katyal told the justices that timing is central to the case — that parents cannot file a suit for damages under the ADA before completing administrative appeals under the IDEA.

Justice Ruth Bader Ginsburg opined that just because the IDEA exists doesn't mean individuals are barred from suing under other laws that protect the disabled.

"Think of it this way," Justice Elena Kagan interjected. "Suppose this girl wanted to go to a public library a couple of times a week and the library said, 'You can't take your dog here; we're going to just provide you with a librarian who will help you.' "

If the girl sues, claiming "she was deprived of access to a public facility in a way that caused her distress and emotional harm, isn't that exactly the suit" this girl brought here, "except that instead of a library, it's a school?"

Lawyer Katyal suggested that allowing these suits would create a two-track system that would constitute an "end run" around the "cooperative process" in which parents and school officials are supposed to design an individualized education plan for a disabled child under the IDEA.

In this case, though, Chief Justice Roberts said, the cooperative process is a "charade" because the parents weren't asking for the school district to allow the dog as part of an education plan but to allow the dog under the ADA, which guarantees access for the disabled.

Lawyer Katyal replied, "You can't just say, 'Oh I met with some administrators, and they didn't like the dog.' You've got to go through the complicated process that IDEA" requires. After all, he added, "It's only 105 days, start to finish."

Chief Justice Roberts, father of two high school students, raised his brows at that, observing "105 days is a big part of the school year."

But when the dust settled, it was unclear in which direction the court was heading.

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ARI SHAPIRO, HOST:

At the U.S. Supreme Court today, the justices heard arguments in the case of a disabled girl, her service dog and the school that barred the dog from its premises. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Ehlena Fry was born with cerebral palsy, which significantly limited her mobility but not her cognitive skills. So when she was about to enter kindergarten in Napoleon, Mich., her parents got a trained service dog, a white, furry goldendoodle named Wonder. Dog and kid traveled to Ohio and trained together for two weeks so that Ehlena could use Wonder to help her, for example, open and close doors, transfer from a chair to a walker or from a walker to a toilet seat.

But the school district would not allow the dog. The school said it was already paying for an aide to help the child. But Ehlena's parents maintained the dog was necessary to make her more independent, just as a seeing eye dog would be for a blind student. And they subsequently moved to another more welcoming district where Wonder helped Ehlena until she graduated to middle school.

Ehlena and her family were on the steps of the Supreme Court this morning surrounded by dogs, parents and kids with similar problems. Also there was Wonder, who is now pretty much retired as a service dog.

EHLENA FRY: He was a great helper to me and my family and he made me independent.

TOTENBERG: The legal issue before the Supreme Court tests whether children denied the help of a service dog may sue for damages under the Americans with Disabilities Act, the ADA, without first going through a time-consuming and sometimes costly administrative appeal under another law, the Individuals with Disabilities Education Act. Representing Ehlena, lawyer Sam Bagenstos seemed to face considerable skepticism at first from both conservative and liberal justices.

Chief Justice Roberts suggested that if a parent wants additional leverage in designing the free and appropriate public education plan they're entitled to for their disabled child under the education law IDEA, they can gain that leverage by suing for damages under the Americans with Disabilities Act. And that, chimed in Justice Breyer, would seem to gut the carefully written procedural system that the IDEA sets up.

Lawyer Bagenstos replied that Ehlena's family is suing for emotional distress damages, something not available under the IDEA, so there's no point in going through an administrative appeal under that law. What emotional damages? In addition to the school's general hostility to the dog, he cited the humiliation Ehlena suffered when forced to demonstrate in front of four adults at the school just how she used the dog to get on and off the toilet.

Representing the school district, lawyer Neal Katyal told the justices that timing is central to the case. Parents cannot file a suit for damages before completing administrative appeals under the IDEA. Justice Ginsburg opined that just because the IDEA exists doesn't mean individuals are barred from suing under other laws that protect the disabled. Justice Kagan - think of it this way. Suppose this girl wanted to go into a public library a couple of times a week and the library said, you can't take your dog here.

We're just going to provide you with a librarian to help you. And the girl sues claiming she was deprived of access to a public facility in a way that caused her distress and emotional harm. Isn't that exactly the suit she brought here, except that it's a school instead of a library? Lawyer Katyal suggested that allowing these suits would create a two-track system that would constitute an end run around the, quote, "cooperative process" in which parents and school officials are supposed to design an individualized education plan for a disabled child.

Chief Justice Roberts - in this case though, the cooperative process is a charade because the parents weren't asking for the school district to allow the dog as part of an education plan but under the ADA. Lawyer Katyal replied that you can't just say, oh, I met with some administrators and they didn't like the dog. You've got to go through the complicated process that IDEA requires. After all, he added, it's only 105 days start to finish.

Chief Justice Roberts, father of two high school students, raised his brows at that noting, 105 days is a big part of the school year. A decision is expected later in the court term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.